Judge Squeals When
CaughtIsn't it strange how "Constitutional rights" is remembered when it
affects the judges themselves, but they don't seem to be concerned about it when
they trample the rights of others.

"This has the potential to be a very big case,"
Bonventre said. "The case could affect the standards set for judges," he said.

Our thanks to Ron Loeber, valortoo@..., JAILer-In-Chief,
New York J.A.I.L. for sending us both articles below. He prefaces the first
article with the following:

Your gonna love this one
folks... especially if you remember "Judicial Ethics - an Oxymoron
(em#74)". Tom Spargo, the lawyer/crook who was elected last
November to the office of NYS Supreme Court Judge in Albany County (after a
"cross endorsement" back room political deal) is now under investigation by the
NYS Commission on Judicial Conduct. And here is where it gets
cute. Judge/lawyer/crook Spargo, in a counter-move, is suing the
Commission in Federal Court. To read about it, go to

Justice Spargo Faces
InquiryBy John CaherNew York Law Journal ~
October 18, 2002

When election law expert and
longtime Republican activist Thomas J. Spargo was caught on film participating
in a noisy political demonstration, nobody close to politics was particularly
surprised. Spargo is a seasoned regular in the political game, and that he would
show up in Florida at the Miami-Dade County Board of Elections during the
Bush-Gore electoral debacle of November 2000 was almost predictable.

But there was one thing
troubling about that image.

At the same time he was
stumping for George W. Bush and chanting with other Republican supporters at
what amounted to a boisterous sit-in, Spargo was serving as a part-time judge in
the rural Albany County town of Berne. Judges are not supposed to get involved
in politics.

Now, Spargo is a state
Supreme Court justice, and the Commission on Judicial Conduct is hot on the tail
of the onetime feisty election law litigator and political firebrand. The
commission has accused Justice Spargo of multiple ethical breaches for his
political conduct. It alleges he violated ethics rules by:

 Appearing as election
counsel for Albany County District Attorney-elect Paul A. Clyne in fall 2000,
and then failing to disclose in his capacity as town justice that he had a
relationship with the prosecutor.

 Participating in a "loud
and obstructive demonstration" during the Florida recount "with the aim of
disrupting the recount process."

 Delivering the keynote
speech at a Monroe County Conservative Party fund-raiser on May 18, 2001, at a
time when he was simultaneously a practicing political lawyer, a sitting town
justice and an announced candidate for state Supreme Court.

 Authorizing his state
Supreme Court campaign committee to pay a $5,000 political consulting fee to a
Democratic and an Independence Party judicial nominating convention delegate.
Ultimately, Justice Spargo won the uncontested election with cross
endorsements.

Commission Administrator
Gerald Stern has not indicated whether the panel will seek to have Justice
Spargo removed or impose a lesser sanction, such as admonishment or censure. The
recommended sanction depends on the outcome of a hearing. Justice Spargo is
attempting to ensure that it never gets to that point and is taking on the
commission in federal court.

Restraining
Order

On Wednesday night, Northern
District U.S. District Judge Lawrence E. Kahn of Albany issued a temporary
restraining order halting a hearing that was slated for Oct. 21. The matter is
returnable Oct. 23 before U.S. District Judge David N. Hurd of Utica.

Justice Spargo is asking
Judge Hurd to declare that the Code of Judicial Conduct violates his free
speech, equal protection, and association rights under both the state and U.S.
Constitutions.

"Out of concern that
additional charges will be levied against me, and the concomitant threat of
sanctions, I have refrained from exercising my free speech and associational
rights and will continue to do so until a court declares the Code [of Judicial
Conduct] and its interpretation to be unconstitutional or the Code is modified
to eliminate the unduly restrictive provisions," Justice Spargo said in an
affidavit. He declined Thursday to comment.

The matter raises both legal
and pragmatic questions, and hinges at least partially on the U.S. Supreme
Court's recent decision in Republican Party of Minnesota v. White, 122 S.
Ct. 2528 (2002). In that case, the Court ruled unconstitutional a provision in
the Minnesota code of judicial conduct barring judicial candidates from
revealing their views on "disputed legal or political issues."

Here, Justice Spargo's
attorney, David F. Kunz, a partner with DeGraff, Foy, Holt-Harris, Kunz &
Devine in Albany, cites the U.S. Supreme Court case. He insists that the ethics
rules as applied by the Commission on Judicial Conduct impermissibly burden the
constitutional rights of candidates for judicial office and subject those
candidates to restrictions that do not apply to people seeking other elective
office.

Stern said Thursday that he
intends to argue in support of the rules and the commission's
interpretation.

"Obviously, we will oppose
[Justice Spargo's] interpretation of the rules and his position," Stern said.
"But that will be decided by Judge Hurd."

Colorful
Character

Justice Spargo is a colorful
and well-known character in New York and national political circles, with a
carefully nurtured reputation as a master manipulator of the state's
mind-bending election laws.

Serving as counsel to the
State Senate Election Committee, Spargo helped craft byzantine statutes, which
he then used to clients' advantage when moonlighting as chief counsel to the
State Republican Committee. Even bitter opponents describe Spargo as an honest
adversary and a happy warrior of sorts who always seemed to get a kick out of
twisting election laws ever so close to the breaking point, without losing
either his temper or sense of humor. While appearing in myriad hypertechnical
elections cases, Spargo often wore a bemused grin, as if he were the only one
present who got the joke.

The former seminarian and
onetime Army paratrooper worked for the GOP for 15 years, but that era came to
an end in the wake of a lengthy and at times entertaining state investigation.
From 1985 through 1989, the Commission on Government Integrity attempted to
determine whether Spargo helped funnel hundreds of thousands of dollars in
campaign funds from a shopping center developer to Poughkeepsie town board
candidates. It never really got its answer.

Investigators
Frustrated

Spargo frustrated the
investigators at every juncture, and seemed to delight in doing so. He filed a
series of 16 lawsuits, and finally agreed to testify only after a judge ordered
him arrested for contempt. He then invoked the Fifth Amendment 19 times. The
investigation eventually petered out after Spargo, who consistently denied any
wrongdoing, resigned his party and state posts, and reverted to private practice
in the public forum of electoral politics.

In recent years, Spargo, as
an elections lawyer, represented politicians of all stripes, and even a few
stars.

He counseled Ross Perot,
Steve Forbes and Jerry Brown in presidential politics. He aided Karen Burstein,
the Democrat who ultimately lost the 1994 New York attorney general race to
Republican Dennis C. Vacco. Four years later, he advocated for Vacco when the
incumbent attempted to salvage a victory from his close battle with current
Attorney General Eliot Spitzer. Spargo has represented Gov. George E. Pataki as
well as billionaire Thomas Golisano, who is now running an aggressive
Independence Party campaign against the governor.

But by the time Spargo was
hired to aid now-President Bush, he was a sitting judge, and therein lies the
problem.

Justice Spargo was among the
roughly 2,200 part-time judges in New York who are paid a relatively paltry sum
for serving in the judiciary and earn their living through private practice.
However, for Justice Spargo earning a living meant practicing election law, and
practicing election law meant involvement in politics. How, or whether, he could
switch hats from partisan hired gun to objective jurist is at the eye of this
storm.

More and more, attorneys are
wrestling with the ethical implications of advocacy in the court of public
opinion, a professional tactic that the U.S. Supreme Court has suggested is not
only legitimate but perhaps obligatory in the age of mass communications.

In Gentile v. State Bar of
Nevada, 501 U.S. 1030, (1991), Justice Anthony Kennedy observed that "an
attorney's duties do not begin inside the courtroom door," and that those duties
may include "an attempt to demonstrate in the court of public opinion that the
client does not deserve to be tried."

Justice Spargo's many roles
-- part-time judge, full-time advocate, candidate for judicial office -- add
another element to the quandary of just what lawyers could or should do to
advance the interests of their clients outside the courtroom.

Although there is no
allegation that Justice Spargo did anything in Florida that would violate his
oath as an attorney, and every indication that he was acting as a vigorous
advocate for his client's interests, the commission maintains that a part-time
judge cannot cavalierly separate his judicial role from his advocate's role and
switch hats on a whim.

By participating in a
campaign that was not his own, even though that was the nature of his private
practice, Justice Spargo violated the Rules Governing Judicial Conduct,
according to the commission.

The other charges are similar
in that they center on behavior that is constitutionally protected when
performed by an attorney or any other citizen, but forbidden if the individual
happens to be a judge. In his affidavit, Justice Spargo suggests that when he
donned robes he agreed to leave his biases, but not his constitutional rights,
at the courthouse door.

"The distinguishing feature
latched upon by the Commission is the fact that I chose to exercise my
constitutional rights while seeking to be elected a town judge or a Supreme
Court judge," Justice Spargo said in the affidavit.

The state Commission on Judicial Conduct has charged
state Supreme Court Justice Thomas Spargo with a series of ethical violations
accusing him of aggressive political activity that threatens his appearance as
a fair and impartial judge.

The commission plans to hold a hearing to determine
whether to recommend removal of Spargo, 59, an attorney and election law
expert long allied with the Republican Party and a part-time Berne town
justice until he was elected to the state Supreme Court last year.

Spargo is challenging the commission on constitutional
grounds and does not deny most of the allegations, which include:

Buying food and drinks and handing out $5 vouchers for
gasoline to potential voters during his race for Berne town justice.

Allowing his Supreme Court justice campaign committee
to pay a $5,000 "consulting fee" to Democratic and Independence Party judicial
nominating convention delegates who help ensure his cross-endorsement and
uncontested bid for judge last year.

Joining in a "loud and obstructive" demonstration in
support of George W. Bush during the electoral recount in Florida in November
2000, despite rules prohibiting judges' involvement in political activity.

Delivering a keynote speech to the Monroe County
Conservative Party in May 2001, when he was a town judge and a candidate for
state Supreme Court.

Allowing Albany County District Attorney Paul Clyne to
hire him as an election attorney in the fall of 2000, even though the district
attorney's office regularly appeared before him in Berne Town Court.

The commission had set a hearing on Oct. 21 to decide
whether to recommend the admonishment, censure or even a removal for Spargo.

Judicial inquiries at this stage are usually
confidential, and the investigation of Spargo came to light only after the
judge took the rare step of filing a complaint in federal court on Wednesday
to block the commission's hearing.

Spargo said the commission's Code of Judicial Conduct,
as it is currently written and applied, violates his constitutional right to
free speech. He is seeking to block the hearing because it could result in his
removal from office, which he said would irreparably harm his reputation,
according to his complaint. Supreme Court justices are elected to 14-year
terms and are paid $136,700 a year.

Spargo declined comment on Friday and referred
questions to his attorney David Kunz of Albany. Kunz said Spargo is not
denying the bulk of the facts in the case, only the commission's
interpretation of them.

"The major items there are not in dispute. The real
issues is whether they constitute improper conduct or not," Kunz said.

U.S. District Judge Lawrence Kahn on Wednesday granted
Spargo's request for a temporary restraining order, suspending the hearing and
giving Spargo an opportunity to make his case before U.S. District Judge David
Hurd on Oct. 25 in Albany.

The Commission on Judicial Conduct's administrator,
Gerald Stern, said he plans to contest Spargo's interpretation of the Code of
Conduct in court, but Stern declined further comment on Friday.

Spargo is a well-known election law attorney who
worked for Albany Republicans for more than 15 years and more recently for
Democrats, too.

In 1990, Spargo appeared before the Commission on
Government Integrity, which accused him of engineering a plan for a
shopping-mall developer to secretly funnel more than $750,000 into a 1985
Poughkeepsie Town Board race. Also, in 1990, Spargo invoked his Fifth
Amendment right not to answer questions that might incriminate him in the
Poughkeepsie case. He publicly denied any wrongdoing, the investigation was
later closed and the commission took no action.

For decades, state judicial codes of conduct have held
judges to a higher ethical standard than other elected officials, barring them
from expressing political views and forcing voters to consider them only on
their qualifications, legal experts said.

But Albany Law School professor Vincent Bonventre said
Friday that Spargo's case in federal court comes at a time when courts are
loosening restrictions on judges' political activity.

"This has the potential to be a very big case,"
Bonventre said. The case could affect the standards set for judges, he said.

He cited a recent U.S. Supreme Court case that struck
down Minnesota state judicial codes prohibiting judges from expressing certain
political views that the court could use to bar the panel from disciplining
Spargo for joining the Florida Bush rally.

Not all the allegations against Spargo are so easily
defended, such as the charge that Spargo's campaign allegedly cut checks for
$5,000 to judicial nomination delegates, Bonventre said.

Spargo's campaign paid $5,000 to Jane McNally, a
delegate to the Democratic Judicial Nomination Convention, after she voted to
endorse Spargo, a longtime Republican. Spargo's campaign also paid $5,000 to a
consulting firm owned by Thomas Connolly, of the Rensselaer County
Independence Party, for his help in securing Spargo's nomination on the
Independence line, the commission said.

"There you are getting down to the nitty-gritty
political stuff that lay people think is generally seedy, and I think its
perfectly fine for state to restrict that," Bonventre said. "I think he has a
much stronger argument with regard to whose elements of pure political
expression."

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